5.  The applicant was born in 1956 and lives in Vienna.
6.  The applicant started practising as a lawyer in 1984. In 1995 he and an Austrian bank (hereinafter “the bank”) entered into a trusteeship agreement in connection with real estate transactions.
7.  One of the applicant’s tasks was to transfer 20,000,000 Austrian schillings (ATS, approximately 1,450,000 euros (EUR)), which he held as a trustee, to company X in exchange for a loan guarantee.
8.  In a report dated 10 May 1996 the bank complained to the Vienna Bar Association (Rechtsanwaltskammer) that the applicant had transferred ATS 20,000,000 to company X, but had not handed over the guarantee, as was stipulated in the trusteeship agreement that he should do.
9.  On 26 August 1996 the Vienna Regional Criminal Court opened preliminary investigations against the applicant on suspicion of embezzlement (Veruntreuung) as regards a breach of the trusteeship agreement with the bank.
10.  On 21 October 1998 the applicant was formally charged with embezzlement for abusing his power under another trusteeship agreement. He was accused of paying out ATS 6,000,000 (approximately EUR 436,000) to a creditor of his clients without being instructed to do so, and of diverting ATS 8,500,000 (approximately EUR 618,000). These proceedings ended with the applicant’s acquittal on 12 January 2000.
11.  During the trial and before the acquittal was pronounced, the public prosecutor had stated that he intended to reserve the applicant’s prosecution for breach of the trusteeship agreement with the bank regarding the transfer of ATS 20,000,000 in exchange for a loan guarantee.
12.  On 7 July 2000 the applicant was charged with fraudulent conversion (Untreue) under Article 153 of the Criminal Code (Strafgesetz­buch) in respect of the transfer of ATS 20,000,000. On 12 April 2002 the Vienna Regional Criminal Court convicted the applicant of fraudulent conversion and sentenced him to three years’ imprisonment. The Supreme Court quashed the conviction for nullity on 16 October 2002.
13.  On 5 February 2003 the Vienna Regional Criminal Court convicted the applicant again of fraudulent conversion under Article 153 of the Criminal Code and sentenced him to six years’ imprisonment. It found that the applicant and the bank had concluded a trusteeship agreement on 31 August 1995 under which the bank was to provide a loan of ATS 20,000,000 to the applicant’s client, X, while the applicant was to provide the bank with a loan guarantee in the same amount. The General Conditions for Real Estate Transactions by Trustees applied to that agreement. The bank had transferred the money to the applicant’s account on 5 September 1995. Only two days later the applicant had transferred the entire amount to a savings account. In breach of the trusteeship agreement including the above-mentioned General Conditions, the applicant had transferred part of the sum to his client without obtaining a loan guarantee, and had invested the remainder abroad in the hope of achieving considerable profits. He had told the bank, which had set 31 December 1995 as the deadline for submitting the guarantee, that he would be able to obtain it by 15 February 1996. Although the bank had repeatedly requested the fulfilment of the trusteeship agreement or the reimbursement of the loan, and the applicant knew by then that his investments had been unsuccessful and that he no longer disposed of the entire amount, he continued to use the remaining money, for instance to pay his own fees of ATS 840,000 (approximately EUR 61,000).
14.  On 3 September 2003 the Supreme Court dismissed the applicant’s plea of nullity and referred the case to the Vienna Court of Appeal to decide on the appeal against sentence. On 18 February 2004 the Court of Appeal reduced the sentence to three years’ imprisonment.
15.  The applicant served his prison sentence from December 2004 to December 2005 and was released after receiving a pardon from the President of Austria. Before the pardon, the applicant had lodged an application with the European Court of Human Rights (application no. 10185/04), complaining of unfairness of the criminal proceedings. The applicant states that the presidential pardon had been subject to the condition that he withdraw the application with the Court, which he did.
16.  On 24 May 1996 the Vienna Bar Association received the bank’s complaint of 10 May that the applicant had breached the trusteeship agreement (see paragraph 8 above). On 29 May 1996 the Disciplinary Lawyer (Kammeranwalt) appointed an Investigating Commissioner. The applicant made submissions on 5 June and 16 September 1996.
17.  On 25 September 1996 the Disciplinary Council of the Vienna Bar Association (“the Disciplinary Council”, Disziplinarrat der Rechtsanwalts­kammer), issued an interim measure prohibiting the applicant from representing clients before the Vienna Regional Criminal Court, and before the prosecution authorities working at the Vienna Regional Criminal Court, as criminal proceedings against the applicant were pending before that court.
18.  On 15 November 1996 the Disciplinary Council extended the interim measure, imposing on the applicant a temporary ban on practising as a lawyer.
19.  On 20 December 1996 the applicant appealed to the Appeals Board (Oberste Berufungs- und Disziplinarkommission für Rechtsanwälte und Rechts­anwaltsanwärter), which dismissed the appeal on 14 April 1997.
20.  As interim measures are only valid for a period of six months, the measures were extended every six months. The reason given was that criminal proceedings were pending against the applicant. No hearings were held.
21.  On 26 January 2000 the Disciplinary Council lifted the temporary ban on practising as a lawyer, since the applicant had informed it that he had been acquitted (see paragraph 10 above).
22.  On 4 May 2000 the Disciplinary Council again issued an interim decision imposing a temporary ban on practising as a lawyer. It noted that criminal proceedings against the applicant were still pending at the Vienna Regional Criminal Court concerning charges of fraudulent conversion to the detriment of the bank. On 2 October 2000 the Appeals Board dismissed the applicant’s appeal.
23.  The final judgment of the Vienna Court of Appeal of 18 February 2004 (see paragraph 14 above) reached the Disciplinary Council on 24 May 2004. The Disciplinary Council scheduled a hearing on 12 October 2004. The applicant did not receive a summons. Subsequently, a new hearing was scheduled for 15 February 2005.
24.  After holding a hearing at which the applicant and his counsel were present, the Disciplinary Council found on 15 February 2005 that the applicant had breached his professional duties and had infringed the profession’s honour and reputation (section 1 (1) of the Disciplinary Act for Lawyers and Trainee Lawyers (Disziplinarstatut für Rechtsanwälte und Rechts­anwaltsanwärter – the Disciplinary Act) and ordered that he be struck off the register pursuant to section 16 (1) subparagraph (4) of the said Act. Furthermore, it held in favour of him in respect of a number of other alleged disciplinary offences.
25.  The Disciplinary Council held that the applicant had failed
(1)  to provide the bank with a loan guarantee in exchange for the amount of ATS 20,000,000, as required under the trusteeship agreement of 31 August 1995;
(2)  to reply to repeated requests from the bank for assurances that the said amount was still in his possession;
(3)  to transfer the amount to a separate trustee account (Anderkonto); and
(4)  finally, to fulfil the trusteeship agreement as a whole.
It referred to the establishment of facts contained in the Vienna Regional Court’s judgment of 5 February 2003 (see paragraph 13 above) and noted that this was confirmed by its own establishment of the facts. Moreover, the Disciplinary Council referred to the Appeals Board’s established case-law, in accordance with which the disciplinary authorities were bound by the establishment of facts contained in a judgment of a criminal court convicting a lawyer alleged to have committed a disciplinary offence. It noted that disposing of such a large amount of money in breach of the trusteeship agreement amounted to serious professional misconduct and a severe infringement of the profession’s honour and reputation within the meaning of section 1 (1) of the Disciplinary Act. Given the circumstances of the case, which had also become publicly known and had caused serious damage to the legal profession, it was not sufficient to impose a ban on practising of up to one year but it was necessary to order that the applicant be struck off the register. It would be unacceptable that the applicant, who was at that time serving his prison sentence, could resume practising immediately after his release. Moreover, no client would entrust his affairs to a lawyer who had diverted such a large amount of money in breach of his duties as a trustee.
26.  The applicant appealed to the Appeals Board, inter alia on the ground that his conviction by the criminal court excluded disciplinary proceedings, which were based on the same facts. In the alternative, he argued that the sanction was disproportionate, having particular regard to the fact that he had already been banned from practising as a lawyer while the proceedings were pending.
27.  On 25 July 2005 the Appeals Board upheld the Disciplinary Council’s decision in respect of points (1) to (3), but amended it in respect of point (4), finding that the applicant had failed to fulfil the trusteeship agreement only in respect of part of the sum. It also confirmed the sanction.
28.  In so far as the applicant relied implicitly on Article 4 of Protocol No. 7, the Appeals Board referred to the Constitutional Court’s established case-law according to which conduct of a lawyer qualifying as a criminal offence and also infringing the profession’s honour and reputation contained an element, the “disciplinary-law surplus” (“disziplinärer Überhang”) which justified a disciplinary sanction. The Constitutional Court’s case-law relied on the explanatory report to Protocol No. 7, according to which Article 4 of Protocol No. 7 did not protect a person against conviction for the same act in criminal proceedings and in a different set of proceedings, such as disciplinary proceedings against a civil servant. It thus appeared that disciplinary proceedings did not qualify as criminal proceedings. Moreover, the Disciplinary Council had not merely relied on the matters which constituted the criminal offence, but had had particular regard to the ensuing damage to the profession’s honour and reputation. The commission of a serious criminal offence which had a direct link with the exercise of a lawyer’s professional activity served to undermine the trustworthiness of the profession as a whole. This was all the more so where the violation of duties concerned the core activities of a practising lawyer, such as fulfilling a trusteeship agreement.
29.  Regarding the sanction, the Appeals Board noted in particular that meticulous observance of the duties attached to the core activities of a practising lawyer, such as acting as a trustee, was an indispensable condition for maintaining the confidence the general public placed in the legal profession. In the event of a very serious breach of these duties the Bar Association had to show that it was ready to dissociate itself from such misconduct in an unequivocal manner. It had therefore been necessary to impose the maximum sanction, namely striking the applicant off the register.
30.  The applicant lodged a complaint with the Constitutional Court alleging, inter alia, that he had been tried twice for the same conduct. He also repeated that the imposition of the severest sanction possible, namely striking him off the register, was not justified in the circumstances.
31.  On 28 February 2006 the Constitutional Court dismissed the applicant’s complaint. It found that the disciplinary decisions were properly reasoned, and that the legal basis on which they had been taken was transparent and clear. As regards the applicant’s complaint that he had been punished twice for the same conduct, the Constitutional Court repeated that the applicant’s actions amounted to a criminal offence, but that they also contained a “disciplinary-law surplus” which could be subject to disciplinary sanctions without violating either Article 6 of the Convention or Article 4 of Protocol No. 7.
32.  The Constitutional Court’s judgment was served on the applicant’s counsel on 27 April 2006.